CONSENT COUNTS

Judy Guerin
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Susan Wright
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by
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If you practice BDSM in fully consensual ways, you may still be criminally prosecuted for assault under many laws throughout the U.S. The BDSM-Leather-Fetish communities have focused heavily for years on defining “safe, sane and consensual BDSM practices” for practitioners as well as to help the broader public better understand what it is that we do. It was, after all, only in 1994 that the DSM criteria of the American Psychiatric Association changed their categorization of sadomasochism, paving the path for us to do more effective social, legal and political change. Until 1994, BDSM was defined automatically as a mental illness. Prior to 1994, it was difficult to organize effectively to protect and advance our rights as BDSM practitioners. This categorization and long-term societal view of BDSM as a mental illness resulted in severe consequences for many practitioners over the years—loss of child custody and jobs as well as criminal prosecutions. Fortunately for all of us, NCSF was formed in 1997 to work on these issues and to protect and advance our rights.

Although things have certainly improved for us over the years, we still have significant legal, political and societal issues facing us. The majority of us are not “out of the closet”, still fearing the very real threat of being prosecuted or losing our jobs or families. BDSM is still prosecuted criminally as assault, and the legal precedents related to consensual BDSM assault prosecutions are not in our favor. Many of the laws intended to protect victims of domestic violence and rape need to be modified in their application to consensual BDSM activities. The DSM criterion still needs further reform—it is still used against us, and we can still be defined as mentally ill for what it is that we do. And, members of our communities still routinely face ongoing issues of divorce, child custody, job discrimination and even criminal charges.

NCSF has two major national projects aimed at protecting and advancing the rights of the BDSM-Leather-Fetish communities. First, NCSF has taken charge of the “Consent Counts” initiative that was launched in 2006 at a Leather Leadership Roundtable as the single most important national priority of the BDSM-Leather-Fetish communities. Our goal: to decriminalize consensual BDSM throughout the United States by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes. The Consent Counts project is a nationwide education and activism program that includes a comprehensive analysis of current laws and court decisions, the development of legal arguments for changing the laws, participating in court cases, and ultimately, through lobbying, education and grass-roots activism, changing state laws and the way the public and the courts view BDSM.

The other important advocacy project is NCSF’s work to change the DSM criterion so that consensual BDSM will be categorized, not as a mental pathology, but rather as a normal variant. In this effort, we are coordinating research and advocacy and working with recognized experts in the field.

We need your help and support to be successful. You can make a difference. Get involved. Visit www.ncsfreedom.org.

Copyright, 2010, NCSF. NCSF grants permission for this article to be reproduced and distributed, provided it is distributed in its entirety and free of charge.

In 2007, NCSF organized a leather leadership round table at the
Creating Change conference to discuss the goals of the
BDSM-leather-fetish communities. The number one priority was determined
to be the decriminalization of BDSM.

A subsequent town hall meeting at
LLC was held to further discuss this goal and to establish an outline
for a working plan for this 10-15 year project. This is a community-wide
project with participation by national groups as well as activists to
help determine the plan to accomplish this goal.

Earlier this year, it
was determined that it would be in the best interest of this project forNCSF to take a leadership role. Since NCSF had already established the
DSM project as a major area of focus, it made sense to also add the CONSENT COUNTS project as a major focus.

This e-mail address is being protected from spambots. You need JavaScript enabled to view it
, former Executive
Director of NCSF and long-time sexual freedom activist, recently
re-joined NCSF as the CONSENT COUNTS project director.

In an indictment rendered by a Grand Jury in the Western District of Missouri on September 9, 2010, five Missouri men allegedly participated in torturing a mentally disabled woman online or in person over a multi-year period when the victim was between the ages of 16 and 24. Among the charges are: Sex Trafficking by Force, Fraud or Coercion, Forced Labor Trafficking, Transportation for Sexual Activity, and Conspiracy. The allegations involve sex with a minor, drug and firearms possession, forced prostitution, sexual abuse, and torture to the point that the victim suffered a heart attack.

These activities should not be confused with consensual BDSM. People who engage in BDSM and other similar activities do so as consenting adults and in a safe, sane, and consensual manner. BDSM activities are not violent specifically because all participants can stop any time they wish. Millions of people engage in BDSM: according to the Kinsey Institute’s New Report on Sex, between 5-10% of the adult population engages in BDSM on at least an occasional basis.

NCSF strongly condemns criminals who commit violence and engage in non-consensual activities. We encourage the media to remember that the large community of consenting adults who engage in BDSM activities should not be conflated with these alleged crimes. Ordinary people do BDSM – parents, co-workers, friends, and neighbors. But because of the stigma against BDSM, most people are closeted and don’t speak out about their interests because they fear condemnation and discrimination.

The NCSF is committed to creating a political, legal and social environment in the US that advances equal rights for consenting adults who engage in alternative sexual and relationship expressions. The NCSF aims to advance the rights of, and advocate for consenting adults in the BDSM-Leather-Fetish, Swing, and Polyamory Communities. We pursue our vision through direct services, education, advocacy, and outreach, in conjunction with our partners, to directly benefit these communities.

In 2007, NCSF organized a leather leadership round table at the Creating Change conference to discuss the goals of the BDSM-leather-fetish communities. The number one priority was determined to be the decriminalization of BDSM.

A subsequent town hall meeting at LLC was held to further discuss this goal and to establish an outline for a working plan for this 10-15 year project. This is a community wide project with participation by national groups as well as activists to help determine the plan to accomplish this goal.

Earlier this year, it was determined that it would be in the best interest of this project for NCSF to take a leadership role. Since NCSF had already established the DSM project as a major area of focus, it made sense to also add the Consent Counts project as a major focus.

SM Related Legal Research Resources

It is extremely important for members of NCSF constituent communities to understand the laws that may affect us. Overview The law is interpreted – sometimes to our favor, and sometimes not. For example, while the NCSF firmly believes that consensual SM activity between adults is legal, there are those that have a differing opinion and will intentionally interpret the law in an unfavorable way. Therefore, it is extremely important for the SM-Leather-Fetish communities to have an understanding of the laws that may affect us. Knowing relevant laws will greatly assist our communities in safely organizing and maintaining SM-Leather-Fetish activities and functions. There are numerous laws, ordinances, and regulations at all levels of government - federal, state, regional, county and city. It's not easy to locate all of the laws that may affect us, but it's very important. You should make every attempt to thoroughly research your laws if your activities may come under the scrutiny of law enforcement or local authorities. In addition, NCSF recommends that thorough legal research should include consultation with a knowledgeable…

Jovanovic Case (Consent)

Affidavit of Susan Wright in Response to Affirmation in Opposition to Motion to File a Memorandum of Law Amicus Curiae N.Y. Co. Ind. No 10938/96 Cal. No. 98-10474 1. I, Susan Wright, am the Executive Director of the National Coalition for Sexual Freedom (NCSF) . 2. I write this affidavit in response to the DA's Brief in Opposition to the NCSF request to file an Amicus Curia…

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96 -against- OLIVER JOVANOVIC, Defendant-Appellant. -----------------------------------------------------------------------X AFFIRMATION OF MICHAEL THOMAS FOIS IN RESPONSE TO OPPOSITION OF THE DISTRICT ATTORNEY TO MOTION TO FILE A MEMORANDUM OF LAW AMICUS CURIA Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and…

AFFIRMATION IN OPPOSITION TO MOTION TO FILE A -against- MEMORANDUM OF LAW AMICUS CURIAE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------ THE PEOPLE OF THE STATE OF NEW YORK Respondent, AFFIRMATION IN OPPOSITION TO MOTION TO FILE A -against- MEMORANDUM OF LAW AMICUS CURIAE OLIVER JOVANOVIC, N.Y. Co. Ind. No. 10938/96 Defendant-Appellant. Cal. No. 98-10474 ------------------------------------------------------ MARK DWYER, an attorney duly…

MEMORANDUM OF LAW OF AMICUS CURIAE NATIONAL COALITION FOR SEXUAL FREEDOM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96-against- OLIVER JOVANOVIC, Defendant-Appellant.------------------------------------------------------------------------------------------------X MEMORANDUM OF LAW OF AMICUS CURIAE NATIONAL COALITION FOR SEXUAL FREEDOM PRELIMINARY STATEMENT This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic…

AFFIRMATION OF MICHAEL THOMAS FOIS SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ----------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96 -against- OLIVER JOVANOVIC, Defendant-Appellant. ----------------------------------------------------------------------- x AFFIRMATION OF MICHAEL THOMAS FOIS Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury,…

NOTICE OF MOTION REQUESTING LEAVE TO FILE MEMORANDUM OF LAW AS AMICUS CURIAE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/ -against- OLIVER JOVANOVIC, Defendant-Appellant. -----------------------------------------------------------------------X NOTICE OF MOTION REQUESTING LEAVE TO FILE MEMORANDUM OF LAW AS AMICUS CURIAE Please take notice that, Upon the annexed Affirmation of Michael…

Barbara Nitke Case (CDA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X BARBARA NITKE, THE NATIONAL COALITION FOR SEXUAL FREEDOM, and THE NATIONAL COALITION FOR SEXUAL FREEDOM FOUNDATION, Plaintiffs, -against- JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, and THE UNITED STATES OF AMERICA; Defendants. 01 Civ. 11476 (RMB) PLAINTIFFS' RESPONSES AND OBJECTIONS TO DEFENDANTS' FIRST SET OF INTERROGATORIES AND REQUEST FOR DOCUMENTS -------------------------------------------------------------------X Plaintiffs Barbara Nitke ("Nitke") and…

The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported. The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the…

WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad. Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient…

March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web. Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children. The court could have…

March 3, 2006 - In documents filed with the U.S. Supreme Court, the U.S. Justice Department did not contest NCSF's assertion that NCSF's Communications Decency Act challenge is properly before the Supreme Court on direct appeal. That is a big step forward because that means both sides agree that the Supreme Court should rule on the merits of NCSF and Barbara Nitke's case, and not on any procedural grounds. The…

July 26, 2005 - New York, NY - A three judge panel has made a decision in the National Coalition for Sexual Freedom and acclaimed photographer Barbara Nitke's challenge against the Communications Decency Act (CDA) which criminalizes free speech on the Internet. According to the court, the plaintiffs presented "insufficient evidence" to support findings that the variation in community standards is substantial enough that protected speech is inhibited by the…

New York, December 18, 2003 - The National Coalition for Sexual Freedom has submitted expert witness reports for their landmark Communications Decency Act lawsuit, Nitke v. Ashcroft (Case No. 01 Civ. 11476). John Wirenius, attorney for plaintiffs NCSF and photographer Barbara Nitke, provided 31 expert witness reports and witnesses who will testify before the three-judge panel for the Southern District of New York. The expert witness reports support the…

Argued: March 31, 1998 Decided: June 25, 1998 Issue: Freedom of Speech -- Whether a law requiring the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American public" before awarding grants to artistic projects is impermissibly viewpoint-based and unconstitutionally vague. Vote: 8-1; No, the law does not violate the First Amendment. Facts: In 1990, Congress amended…

CDA Media Reports

Net Obscenity Provisions Revocation Sought NEWSBYTES By David McGuire http://www.NEWSBYTES.com December 19, 2001, Washington, DC -- A small civil liberties group has asked a federal judge in New York to revoke what remains of an Internet pornography law that was gutted by the U.S. Supreme Court in 1997. In a complaint filed in a New York City Federal Court [http://www.USCourts.gov ] last week, the National Coalition for Sexual Freedom [https://ncsfreedom.org…

Techsploitation By Annalee Newitz San Francisco Bay Guardian, January 14, 2002 HERE'S YET ANOTHER wacky fact you probably didn't know about the Communications Decency Act ole Bill Clinton signed into law way back in 1996: the good citizens of some small town in Arizona or southern California might have the power to send you to jail if they think the contents of your Web site are "obscene." The CDA…

Communications Decency Act A Lingering Coup de Grace? By Tim Kingston January 23, 2002 You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting…

Can David Beat Goliath in the Battle of Obscenity? Part 2 By Judd Handler Ynot News, January 2, 2002 Last week's editorial featured an interview with John Wirenius, lead counsel for the National Coalition for Sexual Freedom and Barbara Nitke, an adult content photographer. Wirenius, on behalf of the NCSF and Nitke, filed a lawsuit on December 11 against Attorney General John Ashcroft seeking to overturn Internet…

Can David Beat Goliath in the Battle of Obscenity? By Judd Handler Ynot News, December 20, 2001 One would think it would take the giants of the industry to force the government to rethink existing, not-applicable-to-the-Internet obscenity laws. On the contrary, the little players may be the ones who are successful in getting the federal government and the Supreme Court to throw out irrelevant local community standards when…

New Suit Targets Obscenity Law By Julia Scheeres Wired, December 12, 2001 A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws. The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.…

STANDING UP TO BE COUNTED: BARBARA NITKE CHALLENGES JOHN ASHCROFT ON S/M AND INTERNET OBSCENITY By David Steinberg Spectator Magazine, January 11, 2002 "No matter how we're wired to express love, freedom is having the courage to be who we are." - Photographer/plaintiff Barbara Nitke On December 11, Barbara Nitke and the National Coalition for Sexual Freedom brought suit in New York City's Federal District Court, seeking to have the…

What's Obscene in Podunk By John Strausbaugh New York Press, August 28, 2002 Barbara Nitke is a well-known and much-seen photographer in her field. She's president of the New York Camera Club and teaches a course in darkroom technique at SVA. A nice, neat, sweet individual, she's the very very last person in New York City you'd suspect of being a pornographer. Which she's not, not exactly. She's more…

New York judges refuse to say Internet obscenity law is unconstitutional By LARRY NEUMEISTER Associated Press Writer, July 25, 2005, 7:58 PM EDT NEW YORK -- A special three-judge federal panel on Monday refused to find unconstitutional a law making it a crime to send obscenity over the Internet to children. The Communications Decency Act of 1996 had been challenged by Barbara Nitke, a photographer who specializes in pictures of…

Fotog vs. Feds in Obscenity Law: Files suit to keep photos on Web by Veronica Vera New York Daily News, July 15, 2002 Photographer Barbara Nitke is used to being behind the lens, but if legal matters heat up, she may soon find the government focusing on her. Nitke is ready to step into the foreground as the chief plantiff in Barbara Nitke and the National Coalition for Sexual Freedom…

Nerve December 11, 2001 Photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) filed a lawsuit today, claiming the Internet censorship provision of the Communications Decency Act (CDA) violates the First Amendment right to free speech. The provision stipulates that "local community standards" will judge whether or not something is indecent. Yet attorney John Wirenius argues that "By allowing the most restrictive jurisdiction to define what speech can…

Lawsuit targets last scraps of Net-obscenity law By Sam Costello (IDG News) CNN, December 20, 2001 The National Coalition for Sexual Freedom (NCSF) and artist Barbara Nitke have filed a lawsuit challenging the remaining provisions of the Communications Decency Act, much of which was struck down by the U.S. Supreme Court in 1997. The act, or CDA, was passed in 1996 and was the first U.S. law designed to allow…

NCSF Tackles "Community Standards" For The Web By Mark Kernes Adult Video News, February Issue Washington, DC The National Coalition for Sexual Freedom may not be a household name, even in the adult entertainment industry, but if their recently-filed lawsuit succeeds, they may go down in history as the first group to secure Americans' core constitutional speech rights. NCSF is based in the nation's capital [~] in fact, only a…

Love or Obscenity? S/M Photographer Challenges Internet Decency Standards By Dean Schabner ABCnews.com, July 29, 2002 When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first. That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism. What Nitke found after reading up on Internet law and talking to lawyers was…